upon the part of respondent, to make any demand for an extra year's service, as claimed by appellant.

The evidence sustains the finding of the court allowing the $2,000 account. Respondent testified that he paid this money to the men; but when called upon to name the men and the amounts paid to each, he only showed a cash payment of about $875, and it is claimed that no more than this amount should, in any event, have been allowed. The record shows that the corporation was indebted to the men in the full amount. The men were indebted to respondent for board, and for cash previously advanced to them. In respondent's testimony he says:

"I paid the money myself to the men in coin-checks of different amounts. ** The men owed me board bills, and cash, besides, furnished to them, -both for account of the company. I bring the men down to Rhodes. Mr. Rhodes had no money, and the company had no money. I furnished $2,000.”

The reasonable conclusion to be drawn from this testimony is that in furnishing this money he included the amounts due from the men to himself for board, and money previously advanced, and that it was the balance which he gave in coin-checks to the men. The court only allowed $76 of the $321 account, and no objection is made to this. The amount of $343.60 allowed by the court is objected to upon several grounds. It is claimed that it does not affirmatively appear that the judgments were regularly entered. This is immaterial. If it appears that respondent paid this money upon appellant's request, or that, having paid it without request, appellant subsequently ratified the act and promised to pay respondent the money, it cannot avoid the payment on account of any irregularity in the proceedings in the justice's court, or in the proofs as to the existence of the judgments. The record shows that respondent paid these judgments, and the court's finding in this respect is fully sustained by the testimony. The court allowed respondent $6,975 for 1395 days' work at $5 per day. As the mine was closed down on the eleventh of October, 1880, it is contended that respondent is not entitled to any wages as foreman after that date; that he is not in fact entitled to any wages; but if any amount is allowed it should be for a smaller sum than five dollars per day.

Respondent relies upon the original agreement, upon the request of appellant for him to remain and watch the mine and property, and the further fact that no notice was ever given to him that his serviceswere not needed, or anything said about a reduction of his wages. The original agreement was that he should receive "five dollars per day right along, whether the mine paid or not." Respondent claims that he was recognized as foreman until 1882.

Rhodes, on behalf of appellant, testified that when the mine was closed down in 1880, he had a conversation with respondent and "told him we could not keep a foreman there at that time. We both agreed that it was not right to keep a foreman there under wages;

that he was to stop there, and he could stop in the Victor House without charge." When asked to repeat the conversation he said: "I told him that the company could not afford to pay a man wages for staying there. He agreed to it; stated that he would stop there at the mine, and that there would not be any charge for it." Respondent, when questioned by appellant's counsel, gave his version of the conversation with Rhodes as follows:

"Question. What did he [Rhodes] say to you? Answer. I asked him if he wanted me to stay there and take care of the property. They expected to have everything settled and start anew in a very short time. Q. Is it not a fact that he told you to stay in the boarding-house and take care of it, and when they would start up again they would want you? A. No, sir."

He gave other testimony of like import. It affirmatively appears that he was frequently ordered by the president and superintendent to perform service at the mine, and that he complied with their requests.

We are of opinion that the court was justified, if it believed respondent's testimony to be true, to allow him five dollars per day for the time claimed after the mine was closed down. There is, however, a mistake in the computation of time. The whole number of days between May 4, 1878, and June 12, 1882, is 1,499, and from this should be deducted 118 days that respondent admits being absent from the mine, leaving 1,381 days, which, at five dollars per day, amounts to $6,905.

Of the $10,072 claimed by respondent as having been paid to the men employed at the mine, the court only allowed about $6,000. With reference to this claim the respondent testified that he knew the corporation was indebted to the men in the several amounts paid by him, because he, as foreman, was authorized to employ and discharge the men, and that they could not receive pay for their labor without first obtaining a time-check from him; that the corporation failed to pay the men, and that he paid them with his own money. He also introduced vouchers for the amounts, which the court allowed. The greater portion of these vouchers were simply in the form of an account for so many days' labor against appellant, regularly receipted. Some were regular receipts acknowledging the receipt of the money from respondent "on account of labor performed for Victor Mill & Mining Company." It is argued that the first class of vouchers were immaterial, irrelevant, and inadmissible in evidence, as they did not tend to prove that the money received was not paid by appellant; and that the other class, as to the labor being performed for appellant, were to that extent "a self-serving statement and hearsay evidence." We are of opinion that all the vouchers produced by respondent were properly admitted in evidence, as they tended to corroborate his testimony that he had paid these accounts with his own money. In connection with some of these accounts it is claimed that appellant was misled and deceived by the acts of respondent,

and the men at work under him, in signing the monthly pay-rolls and delivering the same to the superintendent, without receiving their money for the wages receipted for, and it is argued that respondent is for this reason estopped from asserting that the amounts of money as specified in these pay-rolls was never paid by appellant. It is not shown that there was any collusion or intended fraud upon the part of respondent in relation to this matter. The evidence is that the pay-rolls were receipted for at the special instance and request of the superintendent. Respondent testified as follows:

"I signed myself, and some other parties signed the pay-rolls, at the instance and request of Rhodes, the superintendent. * * *He insisted to have the pay-rolls signed. He said it would be all right. I said, Mr. Rhodes, that is not the way to do. * * * ' He said that would be all right; the company was good for it; the mine was good for it."

If there was any misconduct, it was upon the part of appellant's superintendent, and if it was misled thereby, we do not think the respondent should be held responsible for the acts of the superintendent. But we are of opinion that the record shows that appellant had knowledge of the methods used in procuring the signatures of the foreman and laborers upon the pay-rolls, and that it was not misled, deceived, or injured in this matter.

It is contended that the court erred in allowing respondent $492, which he paid to Nicholas Kline. It appears that Kline subsequently commenced suit for the balance due him from the corporation, and in his complaint admitted that he had received from appellant "the sum of $492 for boarding, and the sum of $200 in cash. Respondent, after testifying that he had paid this $492, offered the following receipt as a voucher to show that he had advanced this amount to Kline:

"$492.

CANDELARIA, September 2, 1880. "Received from P. Martin four hundred and ninety-two dollars on account of labor performed for Victor Mill & Mining Company.

Appellant objected to this receipt

"NICHOLAS KLINE."

"On the ground that it is immaterial and irrelevant, and that plaintiff is estopped from offering the evidence of any payment by him to said Kline by reason of the judgment roll already in evidence in the case of Kline v. Victor Mill & Min. Co., for the reason that it is there adjudicated that defendant had paid $492 for board of said Kline, and the sum of $200 in cash, and the further sum of $69.90, the board of said Kline, making a total of $761.90. A judgment for the balance of all that he had earned to that time, the sum of $1,282.10, was, on the twenty-fourth of June, 1881, rendered in favor of said Kline for said amount, which sums included, as adjudicated in said judgment, the entire amount of the earnings of said Kline from said defendant; * * * and the receipt is contradictory of the judgment, in that it is there asserted that $492 was paid by P. Martin, on account of labor performed for the Victor Mill & Mining Company; whereas, said judgment determined that it was paid by defendant."

The position of appellant, as claimed by this objection, is that, notwithstanding the fact that this money was paid by respondent, he is estopped from recovering because Kline gave appellant credit therefor. This objection is wholly untenable.

It is claimed that the court erred in allowing the sum of $400 which respondent, in his examination in chief, testified he had paid to T. Plameney. In his cross-examination he gave testimony to the effect that he only paid Plameney $390, and it is contended that this is all that should have been allowed. But it appears that respondent, in testifying to the payment of the sum of $400, included a store account of Plameney for $10; and in relation to this account, upon his cross-examination, he said: "I fixed this thing with the store-keeper about the $10."

An objection is urged against the allowance of the sum of $306 paid to B. McMurray, and it is claimed that this allowance should be reduced to $225, which respondent paid out and obtained credit for upon Rhodes' books. The amount which respondent obtained credit for on Rhodes' books varies from the real amount paid in many cases. In relation to this claim respondent offered in evidence a receipted account from McMurray for $306, for 76 days' labor performed for the Victor M. & M. Co., "which plaintiff testified, was due from defendant to said McMurray, and was paid by said plaintiff to McMurray with plaintiff's own money."

There are divers and sundry other objections to the rulings of the court in admitting testimony, and in the allowance of the accounts, of which we deem it unnecessary to make special mention. It is enough to say that we have carefully examined the same, and find them to be without any substantial merit. There being a direct conflict of evidence upon all the material points, it is our duty to sustain the findings of the court.

The judgment of the district court is modified by deducting therefrom the sum of $70; and, as so modified, the judgment of the district court is affirmed.

LEONARD, J., (dissenting.) I think the court erred in allowing five dollars a day from and after work was suspended in the Victor mine. Giving to respondent's testimony all that the language imports, it amounts to this: that he was originally employed to act as foreman at five dollars a day; that when the company ceased work he was not formally discharged, and while staying in the company's house free of charge, when asked by the president, by letter, he sometimes performed trifling services, which any friend might well do for another. On the contrary, Mr. Rhodes, defendant's superintendent, subsequently testified that when the mine was closed he had a conversation with respondent in relation to this matter; that he told respondent the company could not afford to keep a foreman or pay a man for staying there; that respondent agreed to it, and stated that he

would stop at the mine and would not charge for it. Respondent did not contradict Rhodes' testimony, and the trifling services performed by him-such as showing a few visitors about the mine-were such as any person ought to have done, situated as he was, after agreeing with Rhodes that he would remain without compensation until work should be resumed. Before Rhodes gave his testimony, respondent testified that when the mine was closed, Rhodes asked him if he would stay there and take care of the property, the Victor mine, and that it was not a fact that Rhodes told him to stay in the boarding-house and take care of it, and when work should be resumed the company would want him. After respondent rested, Rhodes testified for appellant as above stated. In rebuttal respondent did not deny that he had entered into the agreement stated by Rhodes, and to my mind his former testimony did not amount to such denial.

NOTE.

Gratuitous Payment of Debt of Another-Ratification.

If a principal employs an agent to transact a legitimate business for him, and in conducting such business the agent is authorized to advance money on his principal's account, the law protects the agent, and he may recover the money so advanced if the transaction be legitimate. Bartlett v. Smith, 13 Fed. Rep. 263. And where an agent renders an account of his disbursements to the principal, it is his duty to examine the account, and approve or disapprove the payment within a reasonable time; and if he fails to do so he ought not to be heard to say that he was not fully informed as to the facts, and that his silence for that reason should not be treated as amounting to a ratification of such payment. Minnesota Linseed Oil Co. v. Montague, 21 N. W. Rep. 184. The question as to what constitutes a reasonable time is for the jury. Id.

When an unauthorized act of an agent is ratified by the principal, the ratification relates back to the time of the inception of the transaction, and the act is treated throughout as though it had been originally authorized. In re Insurance Co., 22 Fed. Rep. 109; Sandwich Manuf'g Co. v. Shiley, 17 N. W. Rep. 267. The law will not endure that a person shall keep the product of the act of his agent, and yet repudiate the latter's authority. The accepting and retaining such products amount to an approval of the act, and confirmation of the agency. Coykendall v. Constable, etc., 1 N. E. Rep. 884. And where a principal ratifies that which favors him, he ratifies the whole. Gaines v. Miller, 4 Sup. Ct. Rep. 426; Clark v. Ralls, 24 N. W. Rep. 567.

What amounts to a ratification of an agent's act. Hall v. Chicago, M. & St. P. R. Co., 4 N. W. Rep. 325. Acceptance of benefits is. Strasser v. Conklin, 11 N. W. Rep. 254. In any manner expressing assent thereto. Goss v. Stevens, 21 N. W. Rep. 549.

(19 Nev. 199)

STATE ex rel. ATTORNEY GENERAL v. HORTON and others.

Filed October 12, 1885.

QUO WARRANTO-OATH OF OFFICE-WHO MAY ADMINISTER.

A judge of an election is not authorized to administer the oath of office to a school director under the statute. St. 1885, 113, § 9. The only oath a judge is authorized to administer is the oath to a voter when challenged.

Application for quo warranto.

R. M. Clarke and J. D. Torreyson, for relator.

A. C. Ellis, for respondents.

HAWLEY, J. This is a proceeding in the nature of a quo warranto to determine whether the respondents have wrongfully and unlawfully intruded themselves into and usurped the offices of school trustees of Empire school-district, in Ormsby county. The material facts, as